News & Media Opinion Pieces Justice Scalia and Climate Change

Justice Scalia and Climate Change

By David Shearman

The name Scalia will be known to you. He was a legal arm of the Bush government before being nominated for the Supreme Court where he now sits. He dismisses the idea that detainees (e.g. those at Guantanamo) have rights under the US constitution or international conventions, He has made many other interesting statements. He now sits on a climate change case before the Supreme Court, Massachusetts versus the Environmental Protection Agency, a case of immense importance.

The following is part of the transcript from November 29 2006

Justice Scalia:
——–To be sure carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought that an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call air is endangering health. That isn’t, that isn’t—- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contribution to global warming.

Mr. Milkey (for the State of Massachusetts)

Respectfully, Your Honor. It is not the stratosphere. Its the troposphere

Justice Scalia:

Troposphere, whatever. I told you before I’m not a scientist


Justice Scalia:

Thats why I dont want to deal with global warming, to tell you the truth



Let me sketch for you the background to the Case

In general governments are not liable to be prosecuted under domestic law for their policies, for example a policy that encourages greenhouse emissions or fails to reduce them. However domestic law can be used to ensure that governments through their agencies meet the statutory obligations imposed on them to protect the environment.

On this basis, in 1999, The Commonwealth of Massachusetts and many other organisations, (the petitioners) took action against the US Environmental Agency because it had not acted to regulate greenhouse emissions from motor vehicles. It was alleged that the EPA had not complied with the Clean Air Act and that carbon dioxide, nitrous oxide and hydrofluorocarbons were air pollutants. The petitioners also argued that actual existing harm in the public health sphere is not required because a precautionary decision can be made by the Court.

The EPA denied responsibility, arguing that greenhouse gases were not pollutants as defined under the Clean Air Act. In 2005 the petition was dismissed. The Court relied on scientific evidence from the US National Research Council that a causal link between greenhouse emissions and global warming cannot be established unequivocally. In 2006 the case was taken to the Supreme Court, where Justice Scalia now sits.

Justice Scalia is a close associate of the President who said “It isn’t pollution thats harming the environment. Its the impurities in our air and water that are doing it”.

Now we can be confident in the future of the world

transcript at